[Congressional Record Volume 155, Number 119 (Monday, August 3, 2009)]
[Senate]
[Pages S8645-S8647]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SOTOMAYOR NOMINATION

  Mr. McCAIN. Mr. President, it is with great respect for Judge 
Sotomayor's qualifications that I come to the floor today to discuss 
her nomination to the U.S. Supreme Court. There is no doubt that Judge 
Sotomayor has the professional background and qualifications that one 
hopes for in a Supreme Court nominee. As we all know, she is a former 
prosecutor, served as an attorney in private practice, and spent 12 
years as an appellate court judge. She is an immensely qualified 
candidate. And, obviously, Judge Sotomayor's life story is inspiring 
and compelling.

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  As a child of Puerto Rican parents who did not speak English upon 
their arrival in New York, Judge Sotomayor took it upon herself to 
learn English and became an outstanding student. She graduated cum 
laude from Princeton University and later from Yale Law School. Judge 
Sotomayor herself stated that she is ``an ordinary person who has been 
blessed with extraordinary opportunities and experiences.''
  However, an excellent resume and an inspiring life story are not 
enough to qualify one for a lifetime of service on the Supreme Court. 
Those who suggest otherwise need to be reminded of Miguel Estrada. Mr. 
Estrada also was a supremely qualified candidate, and he, too, has an 
incredible life story. Miguel Estrada actually emigrated to the United 
States from Honduras as a teenager, understanding very little English. 
Yet he managed to graduate from Columbia University and Harvard Law 
School magna cum laude before serving his country as a prosecutor and a 
lawyer at the Department of Justice. Later, he found success as a 
lawyer in private practice. However, Miguel Estrada, in spite of his 
qualifications and remarkable background, in spite of the fact that 
millions of Latinos would have taken great pride in his confirmation, 
was filibustered by the Democrats seven times--most recently in 2003--
because many Democrats disagreed with Mr. Estrada's judicial 
philosophy. This was the first filibuster ever to be successfully used 
against a court of appeals nominee.
  I supported Mr. Estrada's nomination to the DC Circuit Court of 
Appeals, not because of his inspiring life story or impeccable 
qualifications but because his judicial philosophy was one of 
restraint. He was explicit in his writings and responses to the Senate 
Judiciary Committee that he would not seek to legislate from the bench.
  In 1987, I had my first opportunity to provide ``advice and consent'' 
on a Supreme Court nominee. At that time, I stated that the 
qualifications I believed were essential for evaluating a nominee for 
the bench included integrity, character, legal competence and ability, 
experience, and philosophy and judicial temperament.
  When I spoke of philosophy and judicial temperament, it is 
specifically how one seeks to interpret the law while serving on the 
bench. I believe a judge should seek to uphold all actions of Congress 
and State legislatures, unless they clearly violate a specific section 
of the Constitution, and refrain from interpreting the law in a manner 
that creates law. While I believe Judge Sotomayor has many of these 
qualifications I outlined in 1987, I do not believe she shares my 
belief in judicial restraint.
  When the Senate was considering Judge Sotomayor's nomination to the 
Second Circuit in 1998, I reviewed her decisions and her academic 
writings. Her writings demonstrated that she does not subscribe to the 
philosophy that Federal judges should respect the limited nature of the 
judicial power under our Constitution. Judges who stray beyond their 
constitutional role believe judges somehow have a greater insight into 
the meaning of the broad principles of our Constitution than 
representatives who are elected by the people. These activist judges 
assume the Judiciary is a superlegislature of moral philosophers.
  I know of no more profoundly antidemocratic attitude than that 
expressed by those who want judges to discover and enforce the ever-
changing boundaries of a so-called ``living constitution.'' It 
demonstrates a lack of respect for the popular will that is at 
fundamental odds of our republican system of government. Regardless of 
one's success in academics and government service, an individual who 
does not appreciate the commonsense limitations on judicial power in 
our democratic system of government ultimately lacks a key 
qualification for a lifetime appointment to the bench.
  Although she attempted to walk back from her long public record of 
judicial activism during her confirmation hearings, Judge Sotomayor 
cannot change her record. In a 1996 article in the Suffolk University 
Law Review, she stated:

       A given judge (or judges) may develop a novel approach to a 
     specific set of facts or legal framework that pushes the law 
     in a new direction.

  This is exactly the view I disagree with. As a district court judge, 
her decisions too often strayed beyond legal norms. Several times this 
resulted in her decisions being overturned by the Second Circuit. She 
was reversed due to her reliance on foreign law rather than U.S. law. 
She was reversed because the Second Circuit found she exceeded her 
jurisdiction in deciding a case involving a State law claim. She was 
reversed for trying to impose a settlement in a dispute between 
businesses, and she was reversed for unnecessarily limiting the 
intellectual property rights of free-lance authors.
  These are but a few examples that led me to vote against her 
nomination to the Second Circuit in 1998 because of her troubling 
record of being an activist judge who strayed beyond the rule of law. 
For this reason, I closely followed her confirmation hearing last 
month. During the hearing, she clearly stated, ``As a judge, I don't 
make law.''
  While I applaud this statement, it does not reflect her record. As an 
appellate court judge, Judge Sotomayor has been overturned by the 
Supreme Court six times. In several of the reversals of Judge 
Sotomayor's Second Circuit opinions, the Supreme Court strongly 
criticized her decision and reasoning. In a seventh case, the Supreme 
Court vacated the ruling, noting that in her written opinion for the 
majority of the Second Circuit, Judge Sotomayor had ignored two prior 
Supreme Court decisions.
  While I do not believe reversal by the Supreme Court is a 
disqualifying factor for being considered for the Federal bench, I do 
believe such cases must be studied in reviewing a nominee's record. 
Most recently, in 2008, the Supreme Court noted in an opinion 
overturning Judge Sotomayor that her decision ``flies in the face of 
the statutory language'' and chided the Second Circuit for extending a 
remedy that the court had ``consistently and repeatedly recognized for 
three decades forecloses such an extension here.''
  Unfortunately, it appears from this case--Malesko v. Correctional 
Services Corp.--that Judge Sotomayor does not seek ``fidelity to the 
law'' as she pledged at her confirmation hearing. As legislators, we 
must enact laws. The courts must apply the law faithfully. The job of a 
judge is not to make law or ignore the law.
  Further, in Lopez Torres v. N.Y. State Board of Education, the 
Supreme Court overturned Judge Sotomayor's decision that a State law 
allowing for the political parties to nominate State judges through a 
judicial district convention was unconstitutional because it did not 
give people, in her view, ``a fair shot.'' In overturning her decision, 
the Supreme Court took aim at her views on providing a ``fair shot'' to 
all interested persons, stating:

       It is hardly a manageable constitutional question for 
     judges--especially for judges in our legal system, where 
     traditional electoral practice gives no hint of even the 
     existence, much less the content, of a constitutional 
     requirement for a ``fair shot'' at party nomination.

  In her most recent and well-known reversal by the Supreme Court, the 
Court unanimously rejected Judge Sotomayor's reasoning and held that 
white firefighters who had passed a race neutral exam were eligible for 
promotion. Ricci v. DeStefano raised the bar considerably on overt 
discrimination against one racial group simply to undo the 
unintentionally racially skewed results of otherwise fair and objective 
employment procedures. Again, this case proves that Judge Sotomayor 
does not faithfully apply the law we legislators enact.
  Again and again, Judge Sotomayor seeks to amend the law to fit the 
circumstances of the case, thereby substituting herself in the role of 
a legislator. Our Constitution is very clear in its delineation and 
disbursement of power. It solely tasks the Congress with creating law. 
It also clearly defines the appropriate role of the courts to ``extend 
to all Cases in Law and Equity, arising under this Constitution, the 
Laws of the United States, and Treaties.'' To protect the equal, but 
separate roles of all three branches of government, I cannot support 
activist judges that seek to legislate from the bench. I have not 
supported such nominees in the past, and I cannot support such a 
nominee to the highest court in the land.
  When the people of Arizona sent me to Washington, I took an oath. I 
swore to uphold the Constitution. For millions of Americans, it is 
clear what the

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Constitution means. The Constitution protects an individual's right to 
keep and bear arms to protect himself, his home, and his family. The 
Constitution protects our right to protest our government, speak freely 
and practice our religious beliefs.
  The American people will be watching this week when the Senate votes 
on Judge Sotomayor's nomination. She is a judge who has foresworn 
judicial activism in her confirmation hearings, but who has a long 
record of it prior to 2009. And should she engage in activist decisions 
that overturn the considered constitutional judgments of millions of 
Americans, if she uses her lifetime appointment on the bench as a perch 
to remake law in her own image of justice, I expect that Americans will 
hold us Senators accountable.
  Judicial activism demonstrates a lack of respect for the popular will 
that is at fundamental odds with our republican system of government. 
And, as I stated earlier, regardless of one's success in academics and 
in government service, an individual who does not appreciate the common 
sense limitations on judicial power in our democratic system of 
government ultimately lacks a key qualification for a lifetime 
appointment to the bench. For this reason, and no other, I am unable to 
support Judge Sotomayor's nomination.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Republican leader is 
recognized.
  Mr. McCONNELL. Mr. President, before I address the matter I came to 
the Senate floor to address today, I congratulate the Senator from 
Arizona for his thoughtful description of the process by which he has 
made a decision on the extraordinarily important issue we will have 
before the Senate later this week; that is, the confirmation of Judge 
Sotomayor for the Supreme Court.

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